UPDATED with SAG-AFTRA response at bottom: The war of words in the increasingly bitter jurisdictional dispute between SAG-AFTRA and Actors’ Equity continued today with Equity president Kate Shindle blasting SAG-AFTRA for interfering in her union’s internal affairs by launching a “sham investigation” into one of its committees tasked with finding jobs for Equity members in live theater presentations captured on film, tape or digitally – a jurisdiction both unions claim.
According to Equity, more than 240 stage productions that were recorded for remote viewing during the pandemic have been performed under its contracts, while 60-plus have been performed under SAG-AFTRA’s contracts.
SAG-AFTRA’s national board unanimously approved a resolution Thursday night reaffirming its longstanding jurisdiction over the taping of live shows, and accused Equity of taking part in a “surreptitious campaign to encroach upon SAG-AFTRA jurisdiction.” The board’s resolution, announced on Friday, also directed SAG-AFTRA counsel “to conduct an investigation of Equity’s activities seeking to poach SAG-AFTRA’s jurisdiction, with a particular emphasis on its ‘Media Committee’ and the many agreements it has made for so-called ‘remote’ work that falls squarely within SAG-AFTRA’s jurisdiction, taking thousands of days of work from performers who should have been working under SAG-AFTRA contracts.”
Shindle said she is particularly outraged by SAG-AFTRA’s timing. “On the very day that Equity members learned that Broadway will be shut down until May, SAG-AFTRA decided to announce a sham investigation of Equity’s new media committee,” she said in a statement. “This decision will make it even harder for Equity actors and stage managers to earn healthcare and a fair wage during a pandemic.
“On behalf of actors and stage managers everywhere, I am outraged that not only is SAG-AFTRA interfering with the relationship Equity has with longtime employers, but is now trying to insert itself into Equity’s internal union affairs. Equity’s committees dealing with new media have been around for decades. Only now, in the middle of a pandemic, has SAG-AFTRA discovered concerns that threaten the livelihood of actors and stage managers everywhere.”
“If SAG-AFTRA needs a refresher on what Equity leadership told them months ago, they don’t need an investigation. They can read it in the letter we sent them in July. They seem to have forgotten that during this historic crisis, long-time Equity employers with collective bargaining agreements need to not be faced with interference by another union, and our members need the ability during this pandemic to earn health weeks and wages.”
Equity and its members have been decimated by the closure of playhouses all across the country since the start of the pandemic, and asked SAG-AFTRA for help. It declined, however, to accept a limited waiver that SAG-AFTRA offered. In her July letter to leaders of SAG-AFTRA, Shindle wrote: “We came to you for help and support, primarily so that we could continue working with our long-established bargaining partners during an unprecedented time in which every single brick-and-mortar Equity theater is shut down. From our vantage point, it appears that SAG-AFTRA is instead seeking to leverage the pandemic in the interest of dramatically expanding its traditional jurisdiction at Equity’s expense.”
“I recognize that SAG-AFTRA believes that jurisdiction is simple: if a show is being done for a live audience, it is Equity work; if a camera or microphone is turned on, it is SAG-AFTRA’s,” she wrote in July. “The reality is that jurisdiction is more complex than this. There are numerous instances in which performers working on an Equity contract are filmed or recorded, and many of these arrangements are embedded in mature Equity contracts as examples of the kinds of work we have traditionally covered (and need to continue to organize). To sign the proposed document as SAG-AFTRA staff has revised it would place us in an impossible position.”
See her letter here.
SAG-AFTRA issued this statement in response late Friday afternoon:
“Actors Equity Association dictated the timing of SAG-AFTRA’s investigation by abandoning productive negotiations that could have resolved our dispute and instead attacking SAG-AFTRA in the press.
“After agreeing to language in multiple drafts of our waiver document that acknowledged SAG-AFTRA’s jurisdiction over recorded and broadcast media – which merely confirmed the decades-long practices of both unions – Actors Equity Association cannot be surprised that we are concerned about their intentions now that they have repudiated their earlier acknowledgement.
“Their claim that ‘jurisdiction is complicated’ reflects an effort at misdirection that we addressed in our response to that letter. To the extent this reflects any legitimate concern, it is addressed in the most recent draft of the waiver document that SAG-AFTRA has posted for its members to review, in which SAG-AFTRA acknowledges ‘that provisions in some AEA collective bargaining agreements do involve limited recording and/or transmission of Equity productions by Equity employers.’
“We urge Actors Equity Association to abandon its media attacks and deceptions and instead return to the bargaining table and close out the agreement we have been working on for months.”
The jurisdictional fight had been going on behind closed doors for months, as seen in a July 29 email below that SAG-AFTRA president Gabrielle Carteris and national executive director David White sent to Shindle and Equity executive director Mary McColl.
Dear Kate and Mary,
We received your letter, and we too are dismayed and confused at the response to our July 8th meeting. We remain eager to support the membership of AEA during this global pandemic when live audience production has been shut down. To be clear, the entertainment industry outside of live theater has been largely shut down during this period as well, and SAG-AFTRA members are also under significant distress. We are nonetheless committed to supporting the members of our sister union however possible. What we cannot do is permit the troubling door that you appear determined to open: to use our readiness to grant broad, pandemic waivers to traditional AEA employers as a covert effort by AEA to attack the permanent jurisdiction of SAG-AFTRA. Our jurisdiction over work that is recorded and/or transmitted to a remote audience has been unambiguously in place since 1937, when SAG was first recognized as the union representing film actors. This was later expanded with the arrival of television when both SAG and AFTRA represented actors whose performance was delivered to a remote audience. In light of the substantial and unequivocal history of SAG-AFTRA’s jurisdiction, your letter was frankly astonishing.
While we remain optimistic that an accommodation can be reached, the understandings reflected in your current draft of the pandemic waiver document deviate fundamentally from what we discussed and are not acceptable to SAG-AFTRA.
In order to assist AEA during a very difficult period for live theater, SAG-AFTRA expressed at our July 8 meeting a willingness to waive what we have consistently asserted and treated as our jurisdiction: Work done by traditional AEA signatories to be recorded or transmitted by any means to a remote audience. We agreed to continue our discussion regarding AEA’s claim that such work falls into AEA’s jurisdiction, which SAG-AFTRA disputes. We did not hear AEA assert jurisdiction over this work when it is done other than by a traditional AEA signatory. We also requested, as we have now done on multiple occasions, to review the contracts that AEA intends to use to cover this work.
What we received in writing, however, was a demand that SAG-AFTRA concede that work done to be recorded or transmitted to a remote audience by a traditional AEA signatory is AEA’s jurisdiction, precisely the point that is under dispute. AEA, for its part, limited its recognition of SAG-AFTRA’s jurisdiction over such work to existing SAG-AFTRA signatories. AEA also rejected language proposed by SAG-AFTRA that would have excluded AEA coverage of disputed work pursuant to our pandemic-related waiver from consideration in any future jurisdictional dispute. This appears to attempt to position AEA to cover such work pursuant to our pandemic-related waiver only then to use that fact later to argue that such work is permanently within AEA jurisdiction.
Taken in combination, these positions suggest that AEA is trying to do much more than come to an interim understanding for purposes of addressing the challenges of the current pandemic. It appears, instead, that it is AEA positioning itself to use the pandemic as the thin end of a wedge designed to position AEA to take over traditional SAG-AFTRA jurisdiction.
You point out in your letter that SAG-AFTRA has covered live performances that were made to be recorded and/or transmitted for exhibition to a remote audience, citing Jesus Christ Superstar and the annual Tony Awards as examples. You are certainly correct about that, but your list is under-inclusive. The Network Code has been used to cover book musicals and award shows going all the way back to the dawn of television, facts that only serve to underscore why SAG-AFTRA is unwilling to cede this jurisdiction to another union. In addition, our Codified Basic Agreement has for many decades contained a provision called “Instant Movies – Photography of Legitimate Stage Plays” that has been consistently applied to cover recordings of plays for exhibition to a remote audience under SAG-AFTRA’s contracts. We have long covered AEA performers when they appear on television, for example morning shows (e.g., Today Show, Kelly & Ryan, etc.) and late night shows (e.g., Fallon, Kimmel, Colbert, etc.), network specials, the NBC Macy’s Thanksgiving Parade and the Tony Awards on CBS.
AEA performers appearing in television and radio commercials for AEA-covered stage plays were originally covered under the terms of a waiver agreed to by SAG and AFTRA. Back in the early 2000’s, SAG and AFTRA agreed to allow AEA to bargain those commercial terms directly with the Broadway League on the condition that SAG and AFTRA be invited to that day of bargaining and approve the terms negotiated. Since that time, AEA has worked to bargain those commercial terms without satisfying either condition. A similar history surrounds the recording of AEA plays for archival purposes, which was originally done under our Non-Broadcast Agreement. This unfortunate history is part of the reason we feel compelled to proceed cautiously and with absolute clarity in seeking to resolve our current issues.
You assert that there are numerous instances in which performers working on an AEA contract are filmed or recorded and that many of these instances are embedded in AEA contracts. This mirrors a conversation involving Lawrence Lorczak and Lynn Rhinehart where the LORT agreement was cited as an example of where those terms are embedded in AEA contracts. In response, we requested to review the pertinent sections of the LORT agreement and were directed to your website, which limits access to that document to AEA members. When we requested that a copy of that document be sent to us, we were told that the request would be presented “up the chain” but have never heard any further reply on this point. We now renew our request that AEA share with us copies of contracts that set terms for recording or transmitting performances.
You also assert that the contracts under which SAG-AFTRA has covered work performed by live theater companies for work that is recorded or transmitted to a live audience fall short of the standards set by the analogous AEA contracts. AEA has made this assertion on numerous occasions and each time SAG-AFTRA has responded by asking to see the analogous AEA contracts. AEA has yet to provide us with any of these agreements. We observe that SAG-AFTRA’s analogous agreements are all publicly available on our website.
In light of this history and the fundamental differences that appear to remain between us, we did not think it productive to continue exchanging drafts of a document where there is no meeting of the minds to memorialize. SAG-AFTRA is willing to grant a waiver over work made to be recorded and/or transmitted to a remote audience by traditional AEA signatories under the conditions set forth in our document. We are not willing to cede this jurisdiction to AEA on a permanent basis, nor will we limit our assertion of jurisdiction over this work to existing SAG-AFTRA signatories. It is also critically important to us that an interim accommodation on this point be truly interim and not serve as the basis on which AEA asserts jurisdiction over this work in the future.
We believe that it is possible to accommodate AEA’s immediate needs during this pandemic without violating the foregoing principles. Our pandemic waiver document was an attempt to operationalize that belief. We remain motivated to take this step to support our sister union, particularly given that many AEA members are SAG-AFTRA members as well. If you agree that it is possible to address AEA’s legitimate concerns on an interim basis, then we believe it will indeed be worthwhile to reconvene the leadership of both unions to more clearly articulate the basis on which that can be done.
SAG-AFTRA says it’s still willing to give Equity that limited waiver to represent performers working on taped theatrical presentations, but the shows can’t be shown on television or on any of the main streaming platforms. “We are still willing to do so,” SAG-AFTRA said, “as long as it includes clear recognition of our historical jurisdiction over recorded and broadcast media.”